Fighting to Win and Keep the Freedom to Marry:
The Legal, Political, and Cultural Challenges Ahead

Evan Wolfson1

In 1993, the Hawaii Supreme Court handed down a historic decision opening the door to
equal marriage rights for lesbians and gay men.2 The court case is fully on track, with
proceedings on remand now scheduled for September. The lawyers for the lesbian and gay
couples (Honolulu attorney Daniel R. Foley of Partington & Foley and Evan Wolfson of
Lambda Legal Defense & Education Fund, "Lambda") are hopeful that with a final ruling
from the state supreme court sometime in 1996-97, lesbians and gay men will have won the
right to marry, with all its myriad benefits, rights, and responsibilities.3

The question then will be: will we be able to keep that fundamental right, or will we see
it taken away in a political and legal backlash? The answer may well depend on the work we
all have done between now and then. The cultural, political, and legal battles will be fought
out both on the national level and state-by-state.

Lambda has created a Marriage Project to help coordinate the legal and political tasks that
we all must undertake at this critical turning point in our movement's history. The struggle
to defend and keep the right to marry after we win it, even more than the recent battles over
"gays in the military," will define the position and public understanding of gay people for
years to come. It will touch every issue and every state. Together with other organizations,
The Marriage Project has identified the tasks at hand, and has prepared materials to assist
lesbians, gay men, our local and national organizations, and our allies, in doing the tasks that
each one is best equipped to handle. This is an immense challenge, but also an opportunity to
do the kind of public education and grassroots organizing we must undertake if we are to get
out front and be prepared.

What follows are some materials from Lambda's Marriage Project to help get you up to
date and able to join the fight. Some of the materials address the legal terrain we will be
battling on, others are aimed at facilitating political organizing and engaging the public on the
freedom to marry and gay people. The six documents that follow below, listed in their order
of appearance, should help organize our legal, political, and cultural efforts to ensure that
sexual minorities obtain and retain equal marriage rights in the years ahead.

Critical to the coalition building and public education are vehicles such as the Marriage
Resolution, described in both the "Briefing" and the "Questions & Answers" documents. The
resolution is short and simple:

Because marriage is a fundamental right under our Constitution, and because the
Constitution guarantees equal protection of the law,

RESOLVED, the state should permit gay and lesbian couples to marry and share fully
and equally in the rights and responsibilities of marriage.

The "Briefing" provides an overview of the tasks ahead while the "Questions & Answers"
provides useful talking points on the most common questions people have about marriage and
gay people, enabling anyone to bring the Resolution before an organization. The two
therefore should be used in tandem.

By reading the Briefing and the Questions & Answers, and then taking the Resolution to
organizations -- gay and non-gay, first friendly and then less-friendly -- anybody can help to:
(1) promote the necessary discussion and consideration of our equal marriage rights among
gay and non-gay people (and organizations), (2) collect signatories as evidence of a growing
coalition (Lambda to be a central repository,, with list to be shared), and (3) give people a
tool and a task in building that coalition and approaching others.

Finally, to give an overview of the legal battles ahead -- - not just to win the freedom to
marry, but to assure recognition for same-sex couples' lawful marriages as they travel or
return home to another state -- we enclose the "Checklist" (a step-by-- step guide to research
on state-by-state recognition issues), as well as the "Background" and the "Summary" (two
start-up discussions of the conflicts-of-laws and constitutional issues that will arise). To
complement these three documents the Federal Issues Outline additionally identifies federal
law questions that will need to be addressed and resolved to ensure coast-to-coast recognition
of the right to marry for sexual minorities. Lawyers who wish to join this state-by-state
research effort, or assist in researching analogous federal questions, should contact Lambda's
Marriage Project Legal Clearinghouse.4

It is impossible to over-emphasize the urgency of getting to work now. Already, in the
past few months, radical right legislators have introduced bills in the legislatures of South
Dakota, Utah and Alaska purporting to render "void" any marriages between members of the
same sex -- measures intended not only to thwart recognition of our marriages down the road,
but also to both frame and squelch the issue before we have had a chance to do the necessary

public education and organizing.5 We won round one in South Dakota,6 lost for now in
Utah,7 and are still fighting in Alaska. We cannot allow the enemies of lesbian and gay
families to catch us off guard in other states.

Political and public education work must accompany the legal work that is driving the
timing and inevitability of these momentous battles. Please read the following materials to
see how you can help with the legal, political, and cultural struggles that we face. And then
join us in this historic moment in our continuing fight for full equality and basic human
freedom by contacting the Marriage Project and contributing whatever efforts you can to this
endeavor.

212-995-8986 (work), 212-995-2306 (fax)
RE: BRIEFING: Winning and Keeping Equal Marriage Rights For Lesbians and Gay
Men -- What Lies Ahead After Hawaii, What Tasks Must We Begin Now?

DATE: May 28, 1995

Thank you for the opportunity to brief you on the status of Lambda's Hawaii marriage
case, and the challenges, opportunities, and work that lie ahead for our equality movement.
Throughout the country, we must begin preparing now to defend the right to marry, which
we are on the verge of winning. Lambda looks forward to working with you, others in our
movement, and our allies, and is available as a resource to assist you and others, in
organizing and preparing at this historic moment in our equal rights struggle.

In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage
licenses to same-sex couples under the Hawaii marriage law presumptively violates the state
constitutional guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw.
1993). The Court held that the "different-sex restriction" on marital choice constitutes
unconstitutional sex discrimination, much as the analogous "same- race restriction" prevalent
just a generation ago constituted unconstitutional discrimination based on race.1 Unless the
State can show a "compelling" reason why it should be allowed to continue discriminating, it
will have to stop. The case is now back in the trial court, where any justifications the State
comes up with must undergo strict-scrutiny review. Id. at 74-75.

The State's attorneys have alleged a variety of compelling interests and claimed that the
means furthering those interests are narrowly tailored.2 My co-counsel, Daniel R. Foley of
Honolulu, and I are hopeful that we will be able to defeat these allegations on remand. The
Hawaii Supreme Court is likely to follow through on its earlier holding, and will probably
thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal
marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.3

Many same-sex couples in and out of Hawaii are likely to take advantage of what would
be a landmark victory.4 The great majority of those who travel to Hawaii to marry will
return to their homes in the rest of the country expecting full legal nationwide recognition of
their marriage unions. Despite a powerful cluster of expectations, logistics, rights,
constitutional obligations, and federalist imperatives, there will likely be a backlash at both
the federal and state level, possibly in almost every state. These questions are likely to arise:

Will these people's validly-contracted marriages be recognized by their home states and the
federal government, and will the benefits and responsibilities that marriage entails be
available and enforceable in other jurisdictions for people married in Hawaii?

We at Lambda believe that the correct answer to these questions is "Yes." To support
that answer, common sense and people's general intuitions both back us up and and are there
for us to tap into: marriage is marriage; it's a fundamental right; if you're married, you're
married; this is one country, and you don't get a marriage visa when you cross a state
border. However, we also know that, as always, lesbians and gay men will have to fight
against the tendency of some in politics and the judiciary to create a "gay exception" to even
the clearest principle of constitutional law or fairness. Throughout the country, we must now
undertake the public education, political organizing, and just plain asking people and groups
for support, while preparing, too, for the litigation and political backlash that will follow.

Legal Tasks Ahead

Lambda has prepared a summary of the legal issues and theories that will be invoked
regarding nationwide recognition of marriages validly contracted in Hawaii, as well as a
bibliography of articles on various aspects of equal marriage rights. Identifying the legal
tasks ahead, we have also already begun work to:

develop networks of attorneys, law professors, and law students to research on a
state-by-state basis the legal arguments available against backlash and in favor of recognition
(working, i.e., through the ABA, NLGLA)

organize such research by developing checklist of issues and legal areas for analysis
collect materials in a national clearinghouse for future battles
promote, develop, and publish law review articles and spin-offs to mainstream idea of
equal marriage rights, recognition, and related constitutional and federalist positions

enlist legal scholars, former law clerks, etc. to do this mainstreaming work and reach
judges through conferences, publications, trainings, and create a "buzz"

prepare materials for legislatures, ranging from briefings to explanatory materials to
draft legislation directly on issue and on related issues, i.e., marriage validation.

Political Tasks Ahead

At the same time, it is vital that all of us, and our allies, begin work now on the political
tasks (i.e., public education, national and local organizing) that will shape the legal outcome.
On both the national and local levels, all of us must begin now to:

send wake-up calls to our national and local community organizations, and our allies
(through, for example, conferences, ad hoc forums, contacts, and briefings such as this)

create a non-defeatist sense of entitlement and expectation, and a climate of receptivity
and inevitability (tempered with a commitment to the long haul) -- tap into power of marriage
as issue and personal desire even for those less politicized people in our communities

prepare and begin public education campaigns (in conjunction with appropriate groups
and professionals)

develop successful "messages" (with polling and p.r. professionals) on the themes of
marriage, lesbian and gay families, equal rights, fairness, people's expectations for their
partners and children, and federalism -- these are themes that work for us, and a chance to
show who we are, frame the battle as we want, address our issues, and present our lives and
love affirmatively -- tap into more comfortable, genuine rhetoric for mainstream

marshal evocative stories of how being denied the right to marry affects real people
build a coalition (after developing lists of targets, teams for visiting, and talking points,
educate and conduct repeated meetings with potential allies, i.e., progressive organizations,
asking for their consideration of the issue over the next several months, and either now or
eventually, for their support and endorsement of a resolution in favor of Baehr, lesbian and
gay families, and equality)

conduct such repeated meetings with other opinion- shapers: community leaders,
churches and religious groups, professional organizations (i.e., social workers, sociologists,
psychologists, etc.)

initiate such repeated meetings with editorial boards (following advance prep work
through networks, with briefing packets and explanatory memoranda)

promote and publish op-ed pieces, features, etc.
organize public forums on topic
organize and conduct trainings to assist local groups in doing this political, educational,
and "mainstreaming" work.

Although there are many challenges and a backlash ahead, there are also terrific
opportunities for organizing and for taking our movement to a new and positive plane. Most
Americans, gay or non-gay, have not yet had to give real thought to the validity or meaning
of same-sex couples' marriages, or of gay people's being denied the equal right to marry.
While the initial reaction of many will range from incredulous to hostile, we also have much
going for us: the fairness and rightness of respecting family relationships and committed,
caring unions; the ability to present these stories in a compelling, positive, warm, and
sympathetic manner (asking people how they would resolve the Catch-22 created by a denial
of the right to marry); the logic, indeed, imperative of not requiring people to choose between
marriage and movement from state to state; the sense that marriage is marriage, and this is
one country in which if you are married, you are married; and a number of sound
constitutional, statutory, common law, and fairness arguments.

Consider two success stories so far: (1) On August 6, 1994, the Japanese American
Citizens League, the nation's largest Asian-American civil rights organization, voted at the
national level, over internal opposition, to support equal marriage rights and the decision in
Baehr v. Lewin. This is an inspiring start toward winning mainstream endorsement of equal

marriage rights and building the necessary coalition and educational foundation, and an
example of what we must do now vis-a-vis other allies.

(2) After some preliminary briefings and education, U.S. Senator Slade Gorton of
Washington State declared his opposition to federal interference with equal marriage rights,
including by constitutional amendment. He based his position not on a support for our equal
right to marry in itself, but rather on a belief that it is not appropriate to interject the
Congress into a matter traditionally left to the States (and the traditional and constitutional
respect for marriages performed out of state).

We must begin asking people and groups -- beginning with our own communities and
then our allies, later including other opinion shapers -- for their support. The very next step
has to be bringing ourselves, our local and national community groups, and then our allies up
to speed on what will follow a win in Hawaii, and on these legal and political tasks that we
must undertake now. Lambda has begun such briefings and urges you to organize others, so
that we can avoid the unpreparedness that was apparent in the 1993 battle over our right to
serve in the military. This time, we have some lead time in which to prepare.

Then we need to get as many organizations as possible to endorse this short and simple
Marriage Resolution:

The Marriage Resolution

Because marriage is a fundamental right under our Constitution, and because the
Constitution guarantees equal protection of the law,

RESOLVED, the State should permit gay and lesbian couples to marry and share
fully and equally in the rights and responsibilities of marriage.

The Marriage Resolution serves as a vehicle for: (1) promoting the necessary discussion and
consideration of our equal marriage rights among gay and non-gay people (and organizations),
(2) collecting signatories as evidence of a growing coalition (Lambda to be a central
repository, with list to be shared), and (3) giving people a tool and a task in building that
coalition and approaching others. Use the Resolution, contact us to sign up your group, and
get others on board!

As activists and committed organizers, you and your organizations have a critical role in
preparing the groundwork NOW for when this issue comes to your home state, as it will.
This landmark civil rights battle cannot be left just to lawyers, nor is this is an issue only for
Hawaii. Every state, every gay person, every person who cares about equality will be called
upon to defend the rights we will have won.

Lambda is available to assist you in your leadership at this historic juncture. Please feel
free to contact the Lambda Marriage Project for materials or more information, to share your
thoughts and plans, and to join with us and others in this work.

2. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts
that marriage statute "intended to foster and protect the propagation of the human race
through male-female marriages"). Contrary to some press reports, this law is unlikely to
impede the progress of the litigation, which is very much still on track.

3. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme
Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor
can the legislature alter the outcome (notwithstanding legislation such as that it adopted in
June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional
amendment.

4. As among non-gay Americans, there is a vast demand among lesbians and gay men for the
equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the
Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community
Critique," 21 N.Y.U. Rev. of L. & Soc. Change (1995) (forthcoming). Marriage brings
with it a host of legal and social benefits and protections otherwise largely unattainable. And
even those in our movement who may not have chosen to fight to win this right are
undoubtedly not willing to see us lose it -- with all the potential damage such a setback would
entail across a range of lesbian and gay concerns. QUESTIONS & ANSWERS ABOUT
THE MARRIAGE RESOLUTION

Thanks to a historic court case now underway in Hawaii, lesbians and gay men may be
on the verge of winning the right to marry -- a basic right still denied them in all fifty states.
In the past, other people were refused the right to marry -- for example, because of their race
-- until the law was changed to end this denial of a basic human right. Like non-gay people,
gay people need and want the right to marry.

Even once gay men and lesbians finally win this fundamental right -- a right central to
true equality as well as a long list of important benefits -- the battle will not be over. There
may be a backlash to try to take away the right to marry, or to say that same-sex couples
married in Hawaii are not married in other states. The battle may be a long one, with
victories and setbacks over several years. To prepare for the struggle, we must gather true
supporters of gay people's equal rights, and ask them to sign on to:

The Marriage Resolution

Because marriage is a fundamental right under our Constitution, and because the
Constitution guarantees equal protection of the law,

RESOLVED, the State should permit gay and lesbian couples to marry and share
fully and equally in the rights and responsibilities of marriage.

Here are the answers to some questions people might have:

Why do we need "gay marriage"?

We don't; we need marriage. The term "gay marriage" implies that same-sex couples are
asking for rights or privileges that married couples do not have. What we are asking for is
our equal right to marry the one we love and care for, just as non-gay Americans do.

Isn't marriage traditionally defined as a union between men and women?

Yes. But it is not right for the government to prevent gay people from sharing the rights and
responsibilities of marriage. What should matter is not the gender or race of those marrying,
but their commitment. After all, at different times marriages were also "traditionally"
defined as only unions between people of the same race or religion, and as unions in which
wives were the property of their husbands. Those "traditional" elements of marriage changed
to reflect American constitutional values and everyone's basic right to equality.

Do gay people really need the right to marry?

Absolutely. Many same-sex couples share the same responsibilities as married couples.
However, nowhere in the United States do they receive the same recognition or benefits that
married couples do. In fact, they face tremendous discrimination, and are treated as
second-class citizens. For example, lesbians and gay men who have been their partner's
primary caretaker are often turned away at the hospital when there's been an accident or
illness; refused "family" health coverage, taxation, and inheritance rights; and even denied
protection in case the relationship ends. Sometimes they see their children taken away, or
their role as parents denied! Regardless of the fact that they have taken responsibility for
their partner's well-being, both economically and emotionally, their legal status is, at best,
that of a roommate. Finally, lesbians and gay men are denied the emotional, social, and even
religious meaning that marriage has for many.

What about domestic partnership?

In certain cities, municipalities, and companies, there is limited recognition of relationships
between unmarried partners, including same-sex couples. The benefits and responsibilities of
such "domestic partnerships" vary considerably. However, no domestic partnership plan can
confer the same set of benefits and responsibilities that marriage does. Domestic partnership
is of limited help to some unmarried couples, but is no substitute for the equal right to marry.

What's happening in Hawaii?

The case began in 1991, when the state clerk refused marriage licenses to three couples (two
lesbian couples, one gay male couple). In 1993, the state Supreme Court ruled that the
refusal violated the state Constitution, which guarantees equality and prohibits sex
discrimination. The case is now back in the lower court, where, unless the state can come up
with a "compelling" reason for discriminating, it must stop. The state legislature passed a
law again trying to restrict marriage, but gave only one reason (procreation) for the
discrimination. Because this is not a good reason for refusing to allow these couples to
marry, lawyers are optimistic. But this equal rights battle cannot be left just to lawyers, nor
is it just about Hawaii.
Isn't marriage really about procreation?

No. Many non-gay people marry, and cannot or do not have children. And many gay men
and lesbians do have children, but are so far denied the right to raise those children within a
marital relationship. Legally and in reality, marriage is best understood as a relationship of
emotional and financial interdependence between two people who make a public commitment.

Many of them -- gay or non-gay -- wish to be parents; many others do not. The choice
belongs to the couple, not the state.

No, gay people are as diverse as non-gay people; many would not choose to marry even if
they could. However, virtually all gay people want the right to decide for themselves
whether and whom to marry, just as non-gay people do.

Don't some religions oppose lesbian and gay relationships?

Yes, but this is not a fight to force any religious institution to perform or extend religious
recognition to any marriages it doesn't want to. This is about the right to the civil marriage
license issued by the state. Just as the state should not interfere with religious ceremonies
one way or the other, so religious groups should not control who gets a civil marriage
license. Of course, many lesbians and gay men are active in their respective religions, many
of which do recognize and support their loving unions and commitments.

Isn't this a bad time to fight for the right to marry?

To some, there is never a good time to fight any battle for equal rights. But here we have no
choice. In this particular battle, the timeline centers on the lawsuit. When and if the Hawaii
Supreme Court hands down a final ruling affirming the right of same-sex couples to marry,
many people in Hawaii and elsewhere will get married there. When they return home to
other states, the nationwide validity of their legally contracted marriages may be challenged.
Although there are powerful legal and practical reasons why a couple's lawful marriage in
one state must be recognized throughout the country (this is, after all, one country, and if
you're married, you're married), there will undoubtedly be an effort in some states and
possible in the federal government to block this recognition. As always in the struggle for
human rights, the outcome will depend in part on how well those committed to equal rights
have prepared for the state- by-state and national legal and political battles, beginning now.
Recall that just a generation ago, a similar "same-race" restriction was in place, and state
governments denied interracial couples the right to marry. Under slavery, African-
Americans were not even permitted to marry at all, which was one of the ways they were
legally dehumanized! Today we realize that this was wrong, and the choice of a marriage
partner belongs to each man or woman, not the state. The same is true for lesbians and gay
men. It's a matter of basic fairness, social responsibility, civic equality, and human dignity.

How can I help?

By getting the word out, educating the public about gay people's right to marry, and
becoming part of a broad-based coalition of individuals and groups that support equal
marriage rights. Make sure that any organization you belong to or can reach out to, sign on
to the Marriage Resolution. By endorsing the Marriage Resolution, you are telling
politicians, judges, and others that it is time to end this discrimination against lesbians and
gay men throughout the United States.

Once your organization(s) have endorsed this resolution, please let us know immediately
by mail, phone, or fax. Then circulate it to others. Contact us at:

RE: CHECKLIST for State-by-State Legal Research on the Nationwide Recognition of
Same-Sex Couples' Validly Contracted Marriages

Lambda Legal Defense & Education Fund ("Lambda") and the Section on Individual
Rights and Responsibilities of the American Bar Association, together with Gay & Lesbian
Advocates & Defenders and other organizations, have formed a network of attorneys to
research the critical constitutional and legal questions that may arise following what would be
a landmark victory in Baehr v. Lewin, the Hawaii equal marriage rights case. We are
seeking your participation in this state-by-state project.

If you are willing to help, please fill out the accompanying form and mail or fax it to
Lambda today. We will then contact you to put you in touch with others researching in the
same area.

What we need from you is research in your state on the following questions. Please try
to be thorough, creative, and exhaustive in providing this information. Lambda's Marriage
Project Legal Clearinghouse plans to compile and distribute the work we do together as part
of a manual for attorneys around the country. We would like you to submit your materials
by June 1, 1995.

Please research the questions set forth in this checklist (to get you started, see the
accompanying memo entitled "Background materials..."). When writing up your research
and appending cases or other materials, please indicate which question you are answering.
This will help us in being accurate when compiling information gathered from attorneys
around the country.

QUESTIONS:

This checklist addresses first choice of law questions and then full faith and credit (and
other constitutional) questions.

CHOICE OF LAW APPROACHES

Marriage Validation Statutes:

1. Does your state have a marriage validation statute? If so, include a copy of the text
of the statute.

If your state has a marriage validation statute, please review the cases under that statute
and answer questions 2-5. If not, proceed to question 6.

2. Have the courts used the marriage validation statute to recognize an out-of-state

(a) what types of out-of-state marriages were validated,
(b) what was the court's reasoning for applying the validation statute to the marriage,
and

(c) how could we use the court's reasoning to argue that it should use the validation
statute to recognize an out-of-state marriage by a same-sex couple?

Be specific.

3. Under what circumstances, if any, have any courts used a "public policy exception" to
refuse to apply the marriage validation statute? Be specific in detailing the specific public
policy exception used and whether there is any likelihood that a court would use that same
public policy to refuse to apply the marriage validation statute in cases of an out-of-state
marriage of same-sex couples. Also indicate whether the use of the public policy has been
critiqued in the courts or in local law reviews or journals.

4. If public policy exceptions have been used to refuse validation, have any courts used
the marriage validation statute to recognize an out-of-state marriage despite the existence of
public policy exceptions? Be specific in detailing the court's reasons for not using the public
policy exception and recognizing the out-of-state marriage under the validation statute.

5. Determine whether the marriage validation statute in your state was adopted as a
segment of the Uniform Marriage and Divorce Act or any other interstate arrangement. Be
specific in indicating the uniform act or interstate arrangement.

Marriage Evasion Statutes:

6. Does your state have a marriage evasion statute? If so, include a copy of the text of
the statute.

If your state has a marriage evasion statute, please review any prior cases under that
statute and answer questions 7-10. If not, proceed to question 11.

7. Have the courts required that an out-of-state marriage must be statutorily prohibited
within the state in order to be invalid under the evasion statute? If so, explain what the
specific statutory prohibition was, and how the courts used that prohibition to find a violation
of the marriage evasion statute. Be specific.

8. Have any courts recognized an out-of-state marriage by state domiciliaries that was
statutorily prohibited within the state notwithstanding the evasion statute? If so, explain how
the marriage was statutorily prohibited and why the court found that it did not violate the
evasion statute. Be specific.

9. Have any courts found that an out-of-state marriage violated the marriage evasion
statute even if the marriage was not specifically prohibited within the state by statute? If so,
what type of marriage was involved and on what basis did the court find that the marriage
was invalid under the evasion statute? Be specific.

10. If any courts have found that an out-of-state marriage violated the marriage evasion
statute, did it do so on public policy grounds, rather than or in addition to statutory
prohibition? If so, what were the public policy grounds and why did the court find that the
marriage violated that public policy? Also indicate whether the use of the public policy has
been critiqued in the courts or in local law reviews or journals.
Be specific.

Because we have to be prepared to address "public policy" grounds that might be alleged
to support or oppose recognition of out-of-state marriages by same-sex couples, the following
broad public policy questions must be answered. Public policy concerns may arise at any
time in the choice-of-law arena.

11. List any statutes or case precedent that might be used to support an argument that
marriages by same-sex couples would violate state public policy (e.g. "sodomy" statutes,
prohibition of lesbian or gay adoption, cases denying benefits to same-sex couple or refusing
to permit co-parent adoption or visitation, etc.) If statutes exist, include a copy of the text of
the statute. If precedent exists, include a brief summary of the case, an explanation of the
public policy, and how you think that it might be used to argue that marriage by same-sex
couples violates public policy.

12. List any statutes or case precedent that might be used to support an argument that
marriage by same-sex couples would not violate state public policy (e.g. anti-discrimination
or "domestic partnership" statutes or policies, cases determining that "sodomy" statutes are
unconstitutional, cases permitting co- parent adoption or visitation, etc.) If statutes exist,
include a copy of the text of the statute. If precedent exists, include a brief summary of the
case, an explanation of the public policy, and how you think that it might be used to argue
that marriage by same-sex couples does not violate public policy.

Recognition of Out-of-State Marriages:

Most states have handled cases on whether to recognize out- of-state marriages. In this
question, do not consider cases decided under choice-of-law theory. Instead, focus on cases
that do not specify choice-of-law theory but use public policy or other grounds for deciding
whether to recognize the marriage. Save the choice-of-law cases for the next section.

13. Has your state had any cases deciding whether to recognize an out-of-state marriage
by state domiciliaries? If so:

(a) list those cases,
(b) include the type of out-of-state marriage that was involved,
(c) why was there a question of whether it should be recognized in that state, and
(d) provide an explanation of the court's reasoning for recognizing or refusing to
recognize the out-of-state marriage.

Be specific.

14. If your state prohibited interracial marriages, did any cases (whether majority,
concurring, or dissenting opinions) discuss the racism inherent in the prohibition? List those
cases (and any others of particular interest), and provide the court's reasoning and an
explanation of how that reasoning challenges the inherent racism or denies that racism is
behind the prohibition. Be specific. Have any commentators or local historians discussed the
state's history regarding interracial marriage and how the law of the state was skewed by
racism regarding marriage and family relationships? Discuss.

15. In deciding out-of-state marriage recognition cases, has your court explicitly used a
choice-of-law theory (e.g. First Restatement, etc.) in deciding whether to recognize the
marriage? If so, what choice-of-law theory did it use and how did it use that theory to
determine whether to validate the out-of-state marriage? Be specific.

16. If your state has not had a marriage case decided by choice-of-law theory, what
choice-of-law theory does it use for other conflicts cases? Primarily, these cases would be
torts or contracts cases, although numerous other types are possible. Be specific in stating
what choice-of-law theory your state uses. It is possible that your state uses one or more
theories. If it does, be sure to indicate which theory it uses for which cases.

17. In applying that choice-of-law theory, how does your state court determine when to
use its own law or when to use the law of the other state? In other words, using the cases,
explain how the court applied its choice-of-law theory and how those cases might be used to
support or oppose recognition of an out- of-state marriage by same-sex couples. Be specific.

18. If your courts have used any public policy grounds in deciding choice-of-law cases,
how have they used public policy to decide which law to apply, how has the use of public
policy been critiqued by the courts, and how has it been critiqued in local law reviews or
journals? Be specific.

FULL FAITH AND CREDIT (AND OTHER CONSTITUTIONAL) APPROACHES

Advocates need to be prepared to address both the choice-of- law issues and the
constitutional Full Faith and Credit issues that arise in marriage recognition cases. Research
on a national basis is being done on Full Faith and Credit and other constitutional theories
(i.e., right to travel, equal protection, fundamental right to marry). What we need from you
in particular is research on when courts in your state have used the Full Faith and Credit
clause (or other federalism-related doctrines) for cases arising in your state.

19. How have your state courts or the federal courts for your state defined (a) public
acts, (b) records, or (c) judicial proceedings in Full Faith and Credit cases? How can these
cases be used to support or oppose an argument that marriage fits within those definitions and
thus an out-of-state marriage by same-sex couples should be protected under the Full Faith
and Credit? Be specific.

20. Have any courts used the Full Faith and Credit clause in deciding whether to
recognize out-of-state marriages or whether to refuse to recognize out-of-state marriages? If
so:

(a) indicate the kinds of marriages the court considered,
(b) its reasoning for finding that the Full Faith and Credit clause controlled the issue,
and

(c) its reasoning for providing constitutional protection or refusing to provide
constitutional protection under the clause.

Be specific.

21. In cases when issues arising under the Full Faith and Credit clause might have been
invoked but were not, do your courts or commentators in local law reviews or journals shed
any light on why those issues were not raised (i.e. impact of racism, failure of attorneys to
argue the issue and why). If so, explain the reasons for the failure to raise these issues. Be
specific.

22. Other than Full Faith and Credit, have the courts or commentators in local law
reviews or journals discussed the use of other constitutional theories (i.e., right to travel,
fundamental right to marry) as a basis to recognize or not recognize out-of-state marriages?
If so, explain those theories and how they would support the recognition or lack of
recognition of the marriages. Be specific.

General Marriage Requirements:

23. We need to determine and collect the marriage requirements for every state. Please
research your state's marriage statutes and indicate:

(a) what the requirements are to marry in your state;
(b) is there a domiciliary or residency requirement for your state and, if so, what is
it;

(c) in issuing marriage licenses,
(1) does your state issue a marriage license that can be used in other states;
(2) does your state require that a marriage license be issued in your state even if
the marriage is going to be held out-of-state;

(3) does your state allow weddings to be performed locally with a marriage
license issued from out- of-state;

(d) what other requirements exist in your marriage statutes that might affect the
ability of a same-sex couple to marry or have their marriage recognized in your state;

(e) who can officiate marriages in your state and what does "officiate" actually mean
under your statutes; and

(f) are there any statutes in your state that recognize specific religious marriages as
legally valid even when they do not conform to the other requirements in your marriage
statutes (see, e.g., N.H. ch. 457, sec. 37, which recognizes marriages performed by Jewish
rabbis or Quakers in the way usually practiced by those religions, notwithstanding other
statutory requirements.)

(a) If so, include a copy of the text of the statute and any legislative history that
exists for the prohibition. Many statutes are ambiguous, in that they often include references
to "a man and a woman" or "husband and wife". If there is any possible reading of your
statutes that would support an argument that marriage by same-sex couples is prohibited,
include those statutes.

(b) If your state prohibits marriage by same-sex couples, how does the prohibition
compare to other prohibitions (i.e., incest, polygamy, age or remarriage restrictions) and can
we use those differences (or similarities) to argue in favor of marriage by same-sex couples
(i.e., if they previously recognized a "more prohibited" out-of-state marriage)? Be specific.

For all of these questions, it is vital that your research be specific, creative, and
exhaustive. We need to have as much information on all these questions, and the related ones
that arise during your research, in order to make it possible to compile information that will
be useful to other attorneys and all of us in the battle ahead..

Thank you in advance for your willingness to participate in this national research effort.
We are confident that this research will assist in preparing same-sex couples to assure equal
recognition of their marriages nationwide.

If you know of others who can assist with this project, or if you have questions while
completing this checklist, please contact:

Professor Barbara Cox, California Western School of Law at (619) 525-1496, or

YES, I would like to help ensure that we not only win, but keep, equal marriage rights
for lesbians and gay men, and assure that same-sex couples' marriages are recognized
nationwide. Please count on me as a participant in the Marriage Project Legal
Clearinghouse.

The purpose of this summary Background memo is to prepare you to help in a national
effort to research choice-of-law and Full Faith and Credit issues on a state-by-state basis.
Choice- of-law and constitutional questions will arise once the Supreme Court in Hawaii
recognizes same-sex couples' equal marriage rights in Lambda's pending Baehr v. Lewin
case. Undoubtedly, many gay and lesbian couples will travel to Hawaii and get married.
They will then return home. This research project seeks to compile the statutes and precedent
in each state to prepare advocates to address the choice-of-law and Full Faith and Credit
questions that may arise during litigation if same-sex couples' validly contracted marriages are
denied recognition (e.g., when they file a joint tax return, seek employer-paid health
insurance benefits, or register as a "family" for membership purposes, etc.) The summary
below highlights the main choice-of-law and Full Faith and Credit analyses that will be used
by most courts in resolving these cases.

II. OVERVIEW

In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage
licenses to same-sex couples under the Hawaii marriage law presumptively violates the state
constitution's guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw.
1993). The Court remanded the case to the trial court for strict-scrutiny review as to whether
Hawaii's alleged compelling state interest(s) justify the statute's discrimination, and whether
the means furthering the asserted interest(s) are narrowly drawn. Id. at 74-75.

The State's attorneys have alleged a variety of compelling interests and claimed that the
means furthering those interests are narrowly tailored.1 Co-counsel Daniel R. Foley of
Honolulu and Evan Wolfson of Lambda Legal Defense and Education Fund are hopeful that
the plaintiffs will be able to defeat these allegations on remand. Indications are that the
Hawaii Supreme Court is likely to follow through on its earlier holding, and will thus uphold
a trial court decision ending the "different-sex restriction" on marriage. Equal marriage
rights for same-sex couples would then be a reality in the Nation's fiftieth state.2

Many same-sex couples in and out of Hawaii are likely to take advantage of what would
be a landmark victory.3 The great majority of those who travel to Hawaii to marry will
return to their homes in the rest of the country expecting full legal recognition of their
unions. Despite a powerful cluster of expectations, logistics, rights, constitutional
obligations, and federalist imperatives, these questions are likely to arise: will these people's
validly-contracted marriages be recognized by their home states and the federal government,
and will the benefits and responsibilities that marriage entails be available and enforceable in
other jurisdictions?

We believe that the correct answer to these questions is "Yes." To support that answer,
there is much common sense and people's general intuitions both to back us up and for us to
tap into: marriage is marriage; if you're married, you're married; this is one country; and it's
a fundamental right. However, we also know that, as always, lesbians and gay men will have
to fight against the tendency of some in politics and the judiciary to create a "gay exception"
to even the clearest principle of constitutional law or fairness. Throughout the country, we
must now undertake the public education, political organizing, and just plain asking people
and groups for support, while preparing, too, for the litigation that will follow.

This summary briefly surveys the legal grounds for gaining nationwide recognition of the
marriages same-sex couples contract in Hawaii.3 Because the better answers are on our side
-- and because the legal battle, as well as people's serious consideration of what is involved in
marriage and respect for the marriages of gay people, are just beginning to take shape -- it is
important we begin to marshal and mainstream our arguments without ceding ground. On
this critical front, we have not yet begun to fight.

Broadly speaking, there are two basic approaches to marriage recognition: constitutional
and statutory/case law, discussed in detail below. Obviously, if there is a successful
determination that the Constitution requires recognition nationwide, as we believe there should
be, there would be no need to pursue the complex state-by-state issues that arise under
conflicts of law and other approaches by which states have dealt with marriage recognition in
the past. Such a constitutional outcome could arise under the Full Faith and Credit clause,
other federalist principles (i.e., right to travel), equal protection doctrine, or the fundamental
right to marry itself, as discussed below.

In these background materials, we first lay out the non- constitutional approaches, as
courts might elect to avoid a constitutional issue by recognizing same-sex couples' marriages
on other bases. As advocates, we must master, further develop, and be prepared for both the
constitutional and conflicts approaches, as well as more general public policy considerations
such as practicality and fairness, without waiving or abandoning any.

III. CHOICE-OF-LAW STATUTES AND CASES

a. Introduction
Once Hawaii protects the right of same-sex couples to marry, the question will arise to
what extent an out-of-state marriage by a same-sex couple will be recognized upon the
couple's return to their domicile. For example, Amy and Betty or Andy and Barry travel
from their home state to Hawaii to marry following recognition of same-sex marriage upon
conclusion of the Baehr case. Following their marriage and honeymoon in Hawaii, they
return to their domicile and assert their marital status in that state, just as non-gay people do.
At some point, a benefit provider (be it a health insurance carrier, health club owner,
workers' compensation board, government body, or other institution) may refuse to accept
that the couple is validly married. Then the parties will proceed to litigate our couple's
marital status within their domicile state.4

States have a variety of rules to decide the question. For example, the Restatement
(Second) of Conflict of Laws provides a system of analysis for courts seeking to resolve this
question of first impression. Although some commentators object to the Second
Restatement's position on marriage, the Second Restatement's usefulness at this point is to
indicate an organization for analyzing how some courts in various jurisdictions may address
marriage by same-sex couples. Section 283 states that:

(1) The validity of marriage will be determined by the local law of the state which, with
respect to the particular issue, has the most significant relationship to the spouses and the
marriage under the principles stated in 6.

(2) A marriage which satisfies the requirements of the state where the marriage was
contracted will everywhere be recognized as valid unless it violates the strong public policy of
another state which had the most significant relationship to the spouses and the marriage at
the time of the marriage.

Turning to section 6, that section states that "A court, subject to constitutional restrictions,
will follow a statutory directive of its own state on choice of law." When no statutory
directive exists, to determine the state with the "most significant relationship" to the issue, the
court should consider various factors relevant to the choice-of-law.5

Thus, we will begin, as the courts must do, by considering the statutory directives of the
various states as the first step in determining whether our couple's marriage will be validated
within their domicile.6 When no statutory directive exists, the courts of the state with the
"most significant relationship," usually the parties' domicile, will consider choice-of-law
theories to resolve whether to recognize the marriage which was valid where celebrated.

Courts considering this issue usually begin by recognizing the general rule preferring
validation of marriages which exists with an "overwhelming tendency" in the U.S.7 Under
this rule, marriages will be found to be valid if there is any reasonable basis for doing so.8
There are such strong policy reasons behind this rule that it has become well entrenched in
the substantive law of all the states.9 "The validation rule confirms the parties' expectations,
it provides stability in an area where stability (because of children and property) is very
important, and it avoids the potentially hideous problems that would arise if the legality of a
marriage varied from state to state."10 The parties' expectations arise from the fact that the
married couple needs to know "reliably and certainly, and at once, whether they are married
or not."11 Additionally, the concern about uncertainty comes from the problem of a couple
being married in one state and not another or being continually uncertain about their marital
status while pursuing litigation to determine that status.12

Despite this overwhelming tendency to validate the marriage, our same-sex couple may
be left unsure whether their marriage will be recognized, due to the discretion courts have to
refuse recognition on public policy grounds. Given this inherent uncertainty, we need to
research these questions to provide what guidance is available, from statutes and
choice-of-law theories, to determine the validity of our couple's marriage.

b. Validation Statutes

This section gives background for checklist questions 1-5.
Numerous states have adopted some form of the Uniform Marriage and Divorce Act
210 which was intended to validate marriages celebrated outside a state within the adopting
state. There are some variations in the statutory language. Colorado has a statute which,
like most other states, simply adopts the language from the Uniform Marriage and Divorce
Act.

All marriages contracted within this state prior to January 1, 1974, or outside this state
that were valid at the time of the contract or subsequently validated by the laws of the place
in which they were contracted or by the domicile of the parties are valid in this state.13

The comments of the Uniform Marriage and Divorce Act indicate that 210 was
intended to validate marriages, even if the parties would not have been allowed to marry in
their domicile.14 The comment also states that 210 "expressly fails to incorporate the
'strong public policy' exception of the Restatement [Second] and hence may change the law in
some jurisdictions. This section will preclude invalidation of many marriages which would
have been invalidated in the past."15 Thus, a strong argument can be made in states which
have adopted 210 that they are prevented from contradicting the policy behind that section,
validation in all circumstances, by refusing to recognize our couple's marriage on public
policy grounds.

Many states with validation statutes also adopted 207 of the Uniform Marriage and
Divorce Act which lists narrow prohibitions against marriage. For example, the Colorado
statute states:

14-2-110 Prohibited marriages. (1) The following marriages are prohibited:

(a) A marriage entered into prior to the dissolution of an earlier marriage by one of the
parties;

(b) A marriage between an ancestor and a descendent or between a brother and a sister,
whether the relationship is by the half or the whole blood;

(c) A marriage between an uncle and a niece or between an aunt and a nephew, whether
the relationship is by the half or the whole blood, except as to marriages permitted by the
established custom of aboriginal cultures.

Colorado cases, when applying these two sections of the Marriage and Divorce Act, are
similar to those found in other states. Those cases give out-of-state marriages clear
acceptance, even when contrary to other marriage statutes in the state, unless the marriages
were expressly prohibited.

Thus, questions 1-5 ask you to research whether your state has a validation statute, under
what circumstances that validation statute has been used, and whether the courts have used
public policy grounds in deciding whether to apply the validation statute to an out-of-state
marriage. Question 24 asks whether and how your state prohibits marriage by same-sex
couples to help determine whether the courts will recognize their out-of- state marriages.

c. Evasion statutes

This section gives background for questions 6-10.

Illinois, Massachusetts, Vermont, and Wisconsin adopted the Uniform Marriage Evasion
Act during its brief existence.16 The typical language contained in these statutes can be
found in the Vermont statute.

If a person residing and intending to continue to reside in this state is prohibited from
contracting marriage under the laws of this state and such person goes into another state or
country and there contracts a marriage prohibited and declared void by the laws of this state,

such marriage shall be null and void for all purposes in this state.17

Numerous other states also have evasion statutes, although not adopted as part of the
Uniform Marriage Evasion Act.

With all evasion statutes, the most important question that needs to be answered is
whether your state prohibits marriage by same-sex couples statutorily. Under the clear
language of most evasion statutes, they only apply if the marriage in question has been
prohibited. If your state does prohibit marriage for same- sex couples statutorily, then we
will need to look for cases when other types of marriage were also statutorily prohibited and
whether the courts upheld those marriages despite the statutory prohibition or found them to
violate the evasion statute. If your state does not prohibit marriage for same-sex couples,
then we will be able to make the argument that the evasion statute does not apply unless the
statute has been applied to other marriages that were also not prohibited.

Questions 6-10 ask you to determine whether your state has an evasion statute and to
locate cases interpreting that statute and how the courts have used the statute in deciding the
marriage recognition cases. Question 20 asks whether your state prohibits marriage by
same-sex couples so that we can determine whether the evasion statute, on its face, applies.

d. General policy issues and out-of-state marriage cases

Questions 11-12 consider public policy grounds that may be raised by parties and courts
regardless of marriage validation statutes, marriage evasion statutes, or choice-of-law theory.

Question 13 asks for research on general out-of-state marriage cases that do not fit under
either validation or evasion statutes but also were not explicitly decided using choice-of-law
theory. Question 14 asks for research on miscegenation cases and the racism inherent in the
prohibition of interracial marriage.

Questions 23-24 ask for research on the specific marriage requirements in your state and
whether your state prohibits marriage by same-sex couples.

e. Choice-of-law theory

This section gives background for questions 15-18.

Although the question of whether to recognize a marriage by same-sex couple may well
be determined by a validation statute or an evasion statute, it is likely that courts will also
consider their state's choice-of-law theory in determining whether to recognize an out-of-state
marriage. Choice-of-law theories are used to help courts determine which state's law to use
when faced with resolving cases involving parties or law from different states. In these
cases, the question would be whether to recognize the valid Hawaii marriage or to refuse to
recognize it due to the domiciliary state's refusal to allow marriage by same- sex couples.

This section will list the main choice-of-law theories used today and will briefly, and
incompletely, summarize how a same- sex marriage might be addressed under those theories.
Each state uses some choice-of-law theory in deciding cases. Once you determine the
choice-of-law theory your state uses, this section will provide background on each of those
theories and the questions that will arise under them on the issue of an out-of- state marriage
by a same-sex couple.

For marriage cases decided under 121 of the First Restatement, the rule of lex loci
celebrationis would apply, meaning a marriage valid where celebrated was valid
everywhere.18 Although comment d of 121 indicates that the law of the domicile governs
the domestic status of marriage, the differences between states in their marriage laws would
"lead to great difficulty, if it were not for the fact that all Anglo-American states agree in
creating the status of marriage (except in rare cases considered in 131 and 132) in every
case where there is a contract of marriage valid in the state where the contract is made."19
The courts are understandably reluctant "to negate a relationship upon which so many
personal and governmental considerations depend."20 In fact, denying a normal incident of
marriage to a validly married couple is a harsh measure that should be avoided unless
enjoyment of that incident "violently offends the moral sense of the community."21

But it would be possible, under the First Restatement, that some would argue that our
couple's marriage in Hawaii offends a community's "moral sense" and should be treated as
one of the "rare" cases under 132. That section states:

A marriage which is against the law of the state of domicile of either party, though
the requirements of the law of the state of celebration have been complied with, will be
invalid everywhere in the following cases:

(a) polygamous marriage,
(b) incestuous marriage between persons so closely related that their marriage is contrary
to a strong public policy of the domicile,

(c) marriage between persons of different races where such marriages are at the domicile
regarded as odious,

(d) marriage of a domiciliary which a statute at the domicile makes void even though
celebrated in another state.

Thus, although 121 of the First Restatement would lead one to expect that our couple,
married in Hawaii, could return to their domicile and find strong support for validation of
their marriage, 132 appears to allow the domiciliary state to limit marital recognition.
Although marriages by same-sex couples were not specifically included within 132,
comment b indicates that the list is "not intended to be an exclusive enumeration and if a
marriage offends a strong policy of the domicile in any other respect, such marriage will be
invalid everywhere."22 However, with regard to miscegenous marriages (which were still
restricted when the First Restatement was published) comment c indicates that, in order to be
"odious" under 132(c), it must "not only be prohibited by statute but must offend a
deep-rooted sense of morality predominant in the state."23 Thus, despite 132, in states
following the First Restatement, our same-sex couple could have their marriage in Hawaii
validated if (1) the state chose to follow 121 which would validate it automatically or, (2)
even if the state followed 132, it did not have a statute prohibiting same-sex marriage or
same-sex marriage was not found to offend that state's "predominant" sense of morality.

It would be possible, however, that a court might say that our same-sex couple's marriage
violates the community's "sense of morality."24 Despite the fixed rule in favor of validity,
numerous older cases following the First Restatement did reject out-of-state marriages as
invalid, despite being valid where celebrated.25 Thus, even when choice-of-law decisions
tended to follow mechanical rules, courts maintained their archaic prerogative to invalidate
marriages when contrary to local public policy or prejudice. Because 132 allows an explicit
"escape device" from 121's rule favoring validation, courts hesitant to recognize marriages
by same-sex couples may attempt to invoke public policy grounds to refuse recognition.
Advocates in First Restatement states should be prepared to reject this approach, as well as to
defeat it on its own terms by showing that its essential elements are not met.

In the late 1950's and early 1960's, Brainerd Currie developed his "governmental interest
analysis" theory in a series of law review articles.26 Currie argued that the positive law and
common-law rules of a state expressed state policy choices which that state had an "interest"
in applying to the state's domiciliaries. Currie divided the conflicts world into three portions:
false conflicts, true conflicts, and unprovided-for cases. False conflicts occur when the
parties have a common domicile, that state has the only interest in applying its law, and the
forum should apply the law of the common domicile. True conflicts arise when more than
one state has an interest in applying its law to its domiciliary and unprovided-for cases occur
when no domiciliary benefits from application of his or her state's law. In those cases,
Currie suggests applying the forum law because there is no good reason to displace it since
the problem is insoluble. Interest analysts note that courts, regardless of the approach or
method used, generally end up applying their own law, as Currie advocated they should.

Currie would probably find that our couple's situation involves a "false" conflict because,
although they were married under one state's law, that state was not their domicile and their
domicile's law should control. But, as can be seen from the statutory review above, the
domicile's law may be quite difficult to ascertain.

3. Second Restatement

The Restatement (Second) of Conflict of Laws, reported by Professor Willis Reese, was
completed in 1971. According to Reese, the Restatement's goal was to state narrow, precise,
definite rules in areas such as status, corporations, and property where some consensus
existed among courts as to factors to be considered, while retaining broad, flexible rules in
areas of contracts and torts which would lead courts to sound results.

When considering the validity of out-of-state marriages, the Restatement (Second) directs
courts to consider the law of the state with the "most significant relationship to the spouses
and the marriage" to the issue involved in the particular case. What state has the "most
significant relationship" is determined by consulting the factors in 6. Having determined
which state has this "most significant relationship," next using 283(2), the court will then
consider the marriage to be valid if it was valid where celebrated "unless it violates the strong
public policy" of the state with the most significant relationship to the marriage. Reese notes
that the primary values involved are protection of the expectations of the parties, who must
have intended to enter into a valid marriage, and recognition of the general policy favoring
validation of marriages. The Second Restatement, although clearly tending toward validation
as a general rule, also attempts to protect "the interest of a State in not having its
domiciliaries contract marriages of which it disapproves" and would defer to the domiciliary
state, as the state with the most significant relationship to the couple, to consider whether a
given marriage violates its public policy. Again, this analysis potentially leaves the court
significant discretion in determining if such a strong public policy exists and what it is.

4. Leflar's choice-influencing considerations

Finally, Robert Leflar's "choice-influencing considerations" theory attempted to focus on
those factors that influenced courts in their choice-of-law analysis. Leflar's considerations
include: (1) predictability of result, (2) maintenance of interstate and international order, (3)
simplification of the judicial task, (4) advancement of the forum's governmental interests, and
(5) application of the better rule of law. The theory is extremely flexible and allows courts to
apply a law that the other theories would not permit but which would be appropriate in the
case. The "better rule of law" consideration- -one that finds no parallel in 6 of the Second
Restatement--is the one that has proven most controversial, due to fears that it would lead
courts to give inadequate deference to the forum state's legislation or that it would lead to an
uncritical application of forum law.

Leflar indicated that "justice in the individual case" is the ultimate result to be achieved in
choice-of-law cases. He believed that the better law would be the one that upheld a "fair
transaction entered into by the parties in good faith," including marriages.

Leflar did recognize that looking to the "better rule" might lead judges to the forum's
own law, especially if foreign law might "interfere with fundamental local policies."

It is evident that the search for the better rule of law may lead a court almost
automatically to its own lawbooks. The idea that the forum's own law is the best in the
world, especially better than fancy new sets of laws based on such nontraditional approaches
as research and policy analysis, is unfortunately but understandably still current among some
members of our high courts.27

He found an automatic preference of forum law to be unjustifiable and believed that
judges could appreciate when their forum law was anachronistic, behind the times, or a "drag
on the coat tails of civilization."28 He referred to Sunday laws, fellow-servant rules, and
married women's incapacity to contract as illustrations.29 Archaic laws should yield to more
progressive ones, thereby serving one of choice-of-laws' functions as "growing pains for the
law of a state, at all events in a federation such as our own."30

When a court finds itself faced with a choice between such anachronistic laws still
hanging on in one state, and realistic practical modern rules in another state, with both states
having substantial connection with the relevant facts, it would be surprising if the court's
choice did not incline toward the superior law. A court sufficiently aware of the relation
between law and societal needs to recognize superiority of one rule over another will seldom
be restrained in its choice by the fact that the outmoded rule happens still to prevail in its own
state. One way or another it will normally choose the law that makes good sense when
applied to the facts.31

Leflar believed that judges were "perfectly capable" of preferring rules of law that "make
good social-economic sense for the time when the court speaks."32 Judges concerned with
"justice in the individual case" and "protection of justified expectations of the parties" would
prefer the better rule of law.33 It seems likely that judges considering these factors would
recognize our couple's marriage in Hawaii.

5. Considering marriages by same-sex couples under these approaches

Regardless of the approach used by any particular state, advocates will find significant
general support for validation of our same-sex couple's marriage as a starting point in the
choice- of-law analysis. Commentators, ranging from Leflar, MacDougal and Felix,34 to
Richman and Reynolds,35 and Scoles and Hay,36 tend to treat marriage as a relatively settled
area of choice-of- law. None of them, however, has anticipated what will happen when a
domicile that does not have equal marriage rights is faced with a challenge to a marriage by
same-sex domiciliaries celebrated in a state which recognizes its validity.

All start from the overwhelming tendency in choice-of-law cases to validate the
marriage.37 Courts tend to validate marriages, using either the First Restatement's lex
celebrationis, which recognizes marriage as a status question and looks to the state creating
the status to determine its validity, or modern theories which protect parties' expectations,
provide stability, and avoid the "hideous" problems that result when one's marital status
varies from state to state.38 Considerations such as providing predictability for the parties
involved and protecting interstate order would lead to validation, whether considered under
Leflar's theory39 or sections 6(a) and (f) of the Second Restatement.

Following the approach often taken in contracts cases, states will validate the marriage to
protect the parties' expectations, unless doing so would offend a state's strongly held public
policy.40

This exception for a state's public policy recognizes Currie's governmental interest
analysis and section 6(b) of the Restatement (Second) in protecting the purpose behind a
state's marriage laws. It also fits within Leflar's forum state's interest in applying its law
when its domiciliaries leave the state to marry in another state which would permit a marriage
that could not be celebrated within their domicile.41 All of these modern theories leave it to
the court to consider the strength of the domicile's policies underlying particular marital
regulations, which will vary from state to state although based on similar regulations and
prohibitions.42 Thus, to determine whether our couple is validly married, most courts will
find that it is "(a) the whole law of the domicile, including its conflicts rules, that we should
look to in the first instance; and (b) its conflicts rules will ordinarily refer the question to the
law of the place of performance, which will usually sustain the marriage; but (c) in some
cases its reference will be to its own internal marriage laws."43

But what result? The tendency to validate the marriage, which all commentators
recognize as extremely strong,44 will be countered by the overwhelming homophobia existing
in the judiciary today.45 Courts will be able to refuse recognition of our couple's marriage
by choosing to group it with cases of incest and polygamy which are the most frequent
examples of invalidity.46 Perhaps a more exact match would be miscegenous marriages,
which are conceptually more similar to marriages by same-sex couples and offer more
compelling and resonant analogies and moral lessons.

Questions 15-18 ask you to determine what theory your state uses, whether it has used the
theory in deciding any out-of-state marriage cases, and if it has not, how the reasoning it has
used in other cases applying its chosen choice-of-law theory can be predicted to apply in
marriage cases of same-sex couples.

IV. FULL FAITH AND CREDIT ARGUMENTS UNDER THE U.S. CONSTITUTION

"If there is one thing that the people are entitled to expect from their lawmakers, it is
rules of law that will enable individuals to tell whether they are married and, if so, to
whom."

- Justice Robert Jackson47

The Constitution specifically declares what Americans have come to expect, that this is
one country and you do not shed your rights as you cross a state border:

Full Faith and Credit shall be given in each State to the public Acts, Records and
judicial Proceedings of every other State. And the Congress may by general laws prescribe
the manner in which such Acts, Records and Proceedings shall be proved and the Effect
thereof.

U.S. Const., Art. IV, 1. Successfully establishing that the Full Faith and Credit Clause
requires all states to recognize a marriage legally contracted in another State would yield the
most sweeping possible outcome, and, as a constitutional holding, the one most immune from
legislative tampering.

We believe that full faith and credit recognition is mandated by the plain meaning of the
Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one
country and permit us to travel, work, and live in America as we have come to today.
Simply put, all Americans, gay and nongay alike, would be best served by requiring full faith
and credit for marriages validly contracted in any U.S. state.

Marriage qualifies for recognition under each prong of the Full Faith and Credit Clause,
partaking as it does of each of the three categories: public Acts, Records, and judicial
Proceedings:

Creation of a marriage is a "public Act" both because it occurs pursuant to a
statutory scheme, and is performed in most states by a public or legally-- designated official,
and because the marriage is itself an act -- a res, a thing or status itself created by a State
(which thus acts).

The marriage certificate is the "Record" of that res, recording (with delineated
legal effect) that a marriage has been validly contracted, that the spouses have met the
qualifications of the marriage statutes, and that they have duly entered matrimony. (Along
with marriage certificates, analogous public records of even lesser consequence, ranging from
birth certificates to automobile titles, have been accorded full faith and credit).

Finally, celebrating a marriage is arguably a "judicial Proceeding" in at least those
sixteen states in which judges, court clerks, or justices of the peace officiate. Perhaps more
important, marriage partakes of important elements of a "judgment," the state "act" or
"judicial Proceeding" that has received with least question the greatest "full faith and credit"
from the Supreme Court.48

Application of the Full Faith and Credit Clause to require recognition of marriages is
consistent with the intent of the Framers and with Supreme Court precedent. The Court has
stated that the Full Faith and Credit Clause

altered the status of the several states as independent foreign sovereignties, each free to
ignore rights and obligations created under the laws or established by the judicial proceedings
of the others, by making each an integral part of a single nation, in which rights judicially
established in any part are given nationwide application.

Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).49

The Supreme Court has never ruled on the issue of whether marriages must be accorded
Art. IV, 1 respect, but state courts and lower federal courts often have, even in instances
where the marriages would not be recognized under the laws of the forum state.50 The
Supreme Court's silence on the full faith and credit due marriage reflects, we believe, both
the county's history of racism and aversion to interracial marriage,51 as well as the resultant
general neglect of the Clause itself52 -- burdens our adversaries should be forced to carry.

If they prevail, those opposing recognition of same-sex couples' validly-contracted
marriages ineluctably stand to create a legal and practical nightmare, whereby Americans
have to get their "marriage visa" stamped when they cross a state border, or where they (or
their parents) are simultaneously married and unmarried in different reaches of the country.
Such a situation is simply untenable, both in terms of federalism and the meaning and
expectations around marriage, itself a fundamental right.53

b. The Full Faith and Credit Clause's Implementing Statutes

Congress has implemented the Full Faith and Credit Clause by means of 28 U.S.C.
1738, 1738A, 1739 ("the Statutes"). Because the Statutes are not part of the Constitution,
they can, of course, be altered by Congress.

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have
the same full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts of [such jurisdiction] from which they
are taken.

This statute is most notable for clarifying that full faith and credit obligations apply to all
courts in the United States, thus requiring federal courts also to give complete faith and credit
to State acts, records and judicial proceedings.

The Statutes elaborate on the meaning of "full-faith and credit" by defining it as the same
faith and credit given by law and usage in the courts of the state producing the act, record, or
proceeding. For example, other states must accord a marriage license issued in Hawaii the
same weight and consequence that certificate receives in Hawaii.

The U.S. Supreme Court first applied the principle of according full faith and credit to
out-of-state acts, records, and proceedings in the context of judgments. For example, to
determine what full faith and credit judgments should receive "[i]t remains only then to
inquire in every case what is the effect of a judgment in the state where it is rendered."54
But full faith and credit is not limited to judgments; over time the Court has extended the
same analysis to other acts, records, and proceedings.55 In each instance, a court in the
forum state must accord the act, record, or proceeding the same effect it has in the state
where issued.

By statute Hawaii regards a marriage certificate issued pursuant to its marriage law to be
prima facie evidence of a validly contracted marriage.56 Therefore, the courts of all other
states must also recognize the certificate as prima facie evidence of a validly contracted
marriage.57

c. Other Constitutional Grounds

A State's refusal to recognize a marriage validly contracted under the laws of Hawaii
would place a direct and tangible obstacle in the path of interstate migration and burden
people's now-not-merely-abstract right to marry, thus implicating other constitutional
provisions relating to due process, the right to travel and move freely throughout the nation,
equal protection, interstate commerce, and privileges and immunities,58 as well as the
fundamental right to marry itself. For example, a married couple in Hawaii who wished to
travel in or to another state would essentially have to choose between their marriage and their
right to travel.

The rights to marry and to have that marriage recognized are of fundamental importance,
both in and of themselves,59 and in part because marital status includes substantial economic
and practical protections and benefits, upon which may depend the couple's ability to live as
they want, raise children as they want, or even subsist. By refusing to recognize a couples's
marriage, a State would, for example, "unduly interfere with the right to 'migrate, resettle,
find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629 (1969);60
see also Edwards v. California, 314 U.S. 160 (1941)61; Crandall v. Nevada, 73 U.S. 35
(1867).62

Whatever cluster of constitutional grounds ultimately proves successful, it is clear that
those opposing recognition of same- sex couples' marriages are advocating a position that
could do great damage not only to the individual couples and children involved, but also to

the institution of marriage, family relationships, and the links and mobility vital to our federal
union.63 For all these reasons, the position that the Constitution mandates full faith and
credit for validly contracted marriages is right and should be developed.

Questions 19-22 ask for your research on how your state has interpreted the full faith and
credit clause, whether its interpretations support the argument that marriage comes within the
clause's protection, and whether it has decided any out-of- state marriage cases using the full
faith and credit clause. You should also collect and discuss any treatment of the other
constitutional theories suggested above.

V. Summary and Conclusion

We want to repeat our thanks to you for volunteering to participate in this research
project. We believe that we have a window of about 12-18 months before the Hawaii
Supreme Court will ultimately decide whether same-sex couples can marry in Hawaii. By
using this time effectively, we will be prepared, both legally and politically, to protect equal
marriage rights for same-sex couples returning from Hawaii to a potentially hostile domicile.
This research project will not be successful without your help.

If you know of others who can assist with this project, or if you have questions while
completing the checklist, please contact:

Professor Barbara Cox, California Western School of Law, at (619) 525-1496,

2. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme
Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor
can the legislature alter the outcome (notwithstanding legislation such as that it adopted in
June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional
amendment.

3. As among non-gay Americans, there is a vast demand among lesbians and gay men for the
equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the
Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community
Critique," 21 N.Y.U. Rev. of L. & Soc. Change ____ (1995) (forthcoming).

3. For a fuller discussion of these and other issues, see the materials identified in the
bibliography of equal marriage rights maintained by Lambda; see also Barbara J. Cox,
"Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married

4. Some commentators object to the idea that marital status is "universal" and believe that
one's marital status should be determined on an issue-by-issue basis, after considering the
policies behind each particular incident of marriage. David E. Engdahl, Proposal for a
Benign Revolution in Marriage Law and Marriage Conflicts Law, 55 Iowa L. Rev. 56,
108-10 (1969); Hans W. Baade, Marriage and Divorce in American Conflicts Law:
Governmental-Interests Analysis and the Restatement (Second), 72 Colum. L. Rev. 329,
356-57 (1972); J. David Fine, Application of Issue Analysis to Choice-of-Law Involving
Family Law Matters in the United States, 26 Loyola L. Rev. 31 (1980); Reese, supra note
23, at 952, 965. This analysis conforms to the factual reality of how most cases arise.

The problem with this analysis in our situation, however, is that our couple is concerned
about their "status", that is, whether, in fact, they are married for all purposes. Some courts
have resolved the choice-of-law problem by finding a person to be a spouse for some
purposes, for example intestate succession, but not for others, such as cohabitation. See, In
re Dalip Singh Bir's Estate, 83 Cal. App. 2d 256, 259-60, 188 P.2d 499, 502 (1948)(public
policy not affected by dividing property between polygamous wives validly married abroad,
but would be affected by cohabitation in the state); Miller v. Lucks, 203 Miss. 824, 832, 36
So. 2d 140, 142 (1948)(interracial couple's marriage valid for intestate succession but would
not be recognized for in-state cohabitation); and other cases cited in Engdahl, at nn. 218-226
and accompanying text. This piecemeal response is unacceptable.

Litigating marital recognition for a specific incident of marriage after one spouse had
already died, as occurred in the above cases, is a legitimate exercise. In such situations,
considering the policies behind each incident could more easily lead to recognition of the
marriage, where recognition universally would be denied, because the policy behind granting
the incident would not "offended" by recognizing the marriage. But if our couple is denied
the opportunity to determine their "universal" marital status for all incidents of marriage, they
must relitigate their marital status repeatedly as they request recognition of their marriage for
each incident. This is an untenable prospect and would be unacceptable for other couples.
In fact, our couple may choose to bring a declaratory judgment action upon returning to their
domicile to determine their marital status for all purposes. See Reese, supra note 23, at 953.

5. Id. at 6(2). Those factors include: (a) the needs of the interstate and international
systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested
states and the relative interests of those states in the determination of the particular issue, (d)
the protection of the parties' justified expectations, (e) the basic policies underlying the
particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the
determination and application of the law to be applied. Id.

6. Leflar, 41 N.Y.U. L. Rev. 267, 271 (1966), states that if the forum's legislature has
enacted a choice-of-law statute, forum courts will follow it, once they determine what it
means. Reese also notes that a marriage validation statute, such as 210 of the Uniform
Marriage and Divorce Act, would require a court to uphold a foreign marriage. Reese, 26
Int'l & Comp. L.Q. 952, 963.

23. Id. at comment c. Taintor, 9 Vand. L. Rev. 607, 625 (1956), concludes that only when
a state declares a marriage will be void does that state express "a strong enough public policy
to require the inference that it makes extra-state ceremonies ineffective...." Taintor was
describing the state of the law under the First Restatement which was in effect almost
universally at the time of that article. Thus, only those First Restatement states that expressly
prohibit same-sex couples from marrying could even begin to claim that they have sufficiently
declared that these marriages are odious within the meaning of 132(c).

24. Additionally, section 134 could be used by states that did not want to recognize marriage
of same-sex couples not originally their domiciliaries but who moved to that state after their
marriage. Section 134 allows one state to refuse to extend any particular incident of marriage
to a couple if it would find it sufficiently offensive to public policy to do so.

43. Id. See also Williams v. North Carolina, 317 U.S. 287, 298 (1942) which states: "Each
state as a sovereign has a rightful and legitimate concern in the marital status of persons
domiciled within its borders."

48. Experts agree that judgments receive the most immediate, unquestioned full faith and
credit. See, e.g., Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The
Respective Roles of Due Process and Full Faith and Credit in the Interstate Context," 70
Iowa L. Rev. 95, 97 (1984).

51. See Robert H. Jackson, "Full Faith and Credit -- the Lawyer's Clause of the
Constitution," 45 Colum L. Rev. 1, 7 (1945) (Full Faith and Credit Clause under-invoked in
contexts such as marriage because "the slavery question and [Jim Crow laws] had begun to
distort men's view of government and of law. Talk of 'state sovereignty' became involved in
the issue.").

52. Id. at 3 (former Supreme Court justice observes that the Full Faith and Credit "[C]lause
is a relatively a neglected one in legal literature.... The practicing lawyer often neglects to
raise questions under it, and judges not infrequently decide cases to which it would apply
without mention of it."). Indeed, the whole idea of enforceable rights is itself relatively new,
as is the constitutionalization of family and marriage law, both largely arising since the
heyday of non-recognition cases.

53. Thus, even more than developing any technical legal argument, it is critical that we
collect and explain evocative real life examples of how burdensome, or indeed impossible, it
would be to have the status of one's marriage, or one's parents' marriage, vary from state to
state.

55. See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (holding
that "public acts", including plaintiff's corporate charter, must be given same effect as in
issuing state).

56. See Haw. Rev. Stat. 527-1 and 572-13 (c) (1985); see also Conn. Gen. Stat. Ann.
46b-35 (1958). For a list of states statutorily prescribing what full faith and credit their
marriage certificates should receive see Evan Wolfson and Gregory v. S. McCurdy, "'Let No
One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex
and Different-Sex Couples" (forthcoming).

57. Another set of issues may arise if states take the position that people do, on the face of it,
appear to be married, and then pass statutes giving benefits to different-sex married couples
while denying them to same-sex married couples. Challenges might arise under gender
discrimination, sexual orientation, and other equal protection theories, as well as due process
and fundamental right to marry theories. Naturally, the fall-out in these battles may also
prompt reconsideration of the use of marriage as the unique criterion it is today in many
contexts.

60. In Shapiro v. Thompson, the Court grounded the right to travel in the Equal Protection
Clause and employed strict scrutiny analysis.

61. Edwards involved California's attempt to slow travel into the state by prosecuting citizens
who knowingly brought into the state any indigent nonresident. The Supreme Court
unanimously upheld the constitutional right to cross state lines, but disagreed on the
constitutional provision abridged. The majority relied on the Commerce Clause as prohibiting
"attempts...of any single state to isolate itself from difficulties common to all of them...by the
single expedient of shutting its gates to the outside world." Id. at 173. The two
concurrences found the Privileges and Immunities Clause of the Fourteenth Amendment to be
the applicable constitutional text, and focused on individual rights in finding that right to free
movement between states is a right of national citizenship. Mobility, Justice Douglas argued
in his concurrence, is basic to any question of freedom of opportunity and to prevent the
indigent from seeking new horizons would "contravene every conception of national unity."
Id. at 181. This takes on even greater force when linked to marriage.

62. In Sosna v. Iowa, the Court applied rationality review in upholding a one-year durational
residency requirement for divorce. 419 U.S. 393 (1975). In distinguishing previous cases in
which durational residency requirements held invalid, Justice Rehnquist explained that the
recent traveler was not "irretrievably foreclosed from obtaining some part of what she sought;
her access to the courts was merely delayed." Id. The Court's distinction seemed to turn on
the perceived significance of the burden on the right to interstate migration. In the Court's
view a "mere" one-year's delay in securing a divorce was not a sufficient "penalty" on travel
as to merit strict scrutiny. On the other hand, in Boddie v. Connecticut, the Court held that
Connecticut could not, consistent with the obligations imposed by the Due Process Clause,
deny access to a divorce court based on ability to pay a fee. 401 U.S. at 380. A State's
refusal to recognize a same-sex couple's marriage from Hawaii, would penalize, not merely
delay, those individuals who have exercised their right to move freely throughout our country.

63. The best things our opponents have going for them are, of course, (1) people's ignorance
and hostility regarding gay issues, and (2) the fact that, as a historical matter, marriage
recognition has not largely been treated as a constitutional matter. We must address this
latter point by showing (a) the parallels to non-recognition in other circumstances, i.e., race,
and (b) the increasing constitutionalization of marriage and other rights. The fact that the
Full Faith and Credit Clause was muzzled in the past does not justify its non-invocation in the
future, if needed. Cf., e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Court
reverses precedent of over a hundred years to reestablish view of federalism less deferential
to states' rights).

The State's attorneys have alleged a variety of compelling interests and claimed that the
means furthering those interests are narrowly tailored.2 My co-counsel Daniel R. Foley of
Honolulu and I are hopeful that the plaintiffs will be able to defeat these allegations on
remand. Indications are that the Hawaii Supreme Court is likely to follow through on its
earlier holding, and will thus uphold a trial court decision ending the "different-sex
restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality
in the Nation's fiftieth state.3

Many same-sex couples in and out of Hawaii are likely to take advantage of what would
be a landmark victory.4 The great majority of those who travel to Hawaii to marry will
return to their homes in the rest of the country expecting full legal recognition of their
unions. Despite a powerful cluster of expectations, logistics, rights, constitutional
obligations, and federalist imperatives, these questions are likely to arise: Will these people's
validly-contracted marriages be recognized by their home states and the federal government,
and will the benefits and responsibilities that marriage entails be available and enforceable in
other jurisdictions?

We at Lambda believe that the correct answer to these questions is "Yes." To support
that answer, there is much common sense and people's general intuitions both to back us up
and for us to tap into: marriage is marriage; it's a fundamental human right; if you're
married, you're married; this is one country. However, we also know that, as always,
lesbians and gay men will have to fight against the tendency of some in politics and the
judiciary to create a "gay exception" to even the clearest principle of constitutional law or
fairness. Throughout the country, we must now undertake the public education, political
organizing, and just plain asking people and groups for support, while preparing, too, for the
litigation that will follow.

This summary briefly surveys the legal grounds for gaining nationwide recognition of the
marriages same-sex couples contract in Hawaii.5 These grounds include the U.S.
Constitution, the common law, and statutory law. Because the better answers are on our side
-- and because the legal battle, as well as people's serious consideration of what is involved in
marriage and respect for the marriages of gay people, are just beginining to take shape -- it is
important we begin to marshal and mainstream our arguments without ceding ground. On
this critical front, we have not yet begun to fight.

I. THE U.S. CONSTITUTION

"If there is one thing that the people are entitled to expect from their lawmakers, it is
rules of law that will enable individuals to tell whether they are married and, if so, to
whom."

- Justice Robert Jackson6
A. The Full Faith and Credit Clause
The Constitution specifically declares what Americans have come to expect, that this is
one country and you do not shed your rights as you cross a state border:

Full Faith and Credit shall be given in each State to the public Acts, Records and
judicial Proceedings of every other State. And the Congress may by general laws prescribe
the manner in which such Acts, Records and Proceedings shall be proved and the Effect
thereof.

U.S. Const., Art. IV, 1. Successfully establishing that the Full Faith and Credit Clause
requires all states to recognize a marriage legally contracted in another State would yield the
most sweeping possible outcome, and, as a constitutional holding, the one most immune from
legislative tampering.

We believe that full faith and credit recognition is mandated by the plain meaning of the
Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one
country and permit us to travel, work, and live in America as we have come to today.
Simply put, all Americans, gay and non- gay alike, would be best served by requiring full
faith and credit for marriages validly contracted in any U.S. state.

1. Applying the Full Faith and Credit Clause

Marriage qualifies for recognition under each prong of the Full Faith and Credit Clause,
partaking as it does of each of the three categories: public Acts, Records, and judicial
Proceedings:

Creation of a marriage is a "public Act" both because it occurs pursuant to a
statutory scheme, and is performed in most states by a public or legally- designated official,
and because the marriage is itself an act -- a res, a thing or status itself created by a State
(which thus acts).

The marriage certificate is the "Record" of that res, recording (with delineated
legal effect) that a marriage has been validly contracted, that the spouses have met the
qualifications of the marriage statutes, and that they have duly entered matrimony. (Along
with marriage certificates, analogous public records of even lesser consequence, ranging from
birth certificates to automobile titles, have been accorded full faith and credit).

Finally, celebrating a marriage is arguably a "judicial Proceeding" in at least
those sixteen states in which judges, court clerks, or justices of the peace officiate. Perhaps
more important, marriage partakes of important elements of a "judgment," the state "act" or
"judicial Proceeding" that has received with least question the greatest "full faith and credit"
from the Supreme Court.7

Application of the Full Faith and Credit Clause to require recognition of marriages is
consistent with the intent of the Framers and with Supreme Court precedent. The Court has
stated that the Full Faith and Credit Clause

altered the status of the several states as independent foreign sovereignties, each free to
ignore rights and obligations created under the laws or established by the judicial proceedings
of the others, by making each an integral part of a single nation, in which rights judicially
established in any part are given nation- wide application.
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).8

The Supreme Court has never ruled on the issue of whether marriages must be accorded
Art. IV, 1 respect, but state courts and lower federal courts often have, even in instances
where the marriages would not be recognized under the laws of the forum state.9 The
Supreme Court's silence on the full faith and credit due marriage reflects, I believe, both the
country's history of racism and aversion to interracial marriage,10 as well as the resultant
general neglect of the Clause itself11 -- burdens our adversaries should be forced to carry.

If they prevail, those opposing recognition of same-sex couples' validly-contracted
marriages ineluctably stand to create a legal and practical nightmare, whereby Americans
have to get their "marriage visa" stamped when they cross a state border, or where they (or
their parents) are simultaneously married and unmarried in different reaches of the country.
Such a situation is simply untenable, both in terms of federalism and the meaning and

2. The Full Faith and Credit Clause's Implementing Statutes
Congress has implemented the Full Faith and Credit Clause by means of 28 U.S.C.
1738, 1738A, 1739 ("the Statutes"). Because the Statutes are not part of the Constitution,
they can of, course, be altered by Congress.

Section 1738 provides, in part:

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have
the same full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts of [such jurisdiction] from which they
are taken.
This statute is most notable for clarifying that full faith and credit obligations apply to all
courts in the United States, thus requiring federal courts also to give complete faith and credit
to State acts, records and judicial proceedings.

The Statutes elaborate on the meaning of "full faith and credit" by defining it as the same
faith and credit given by law and usage in the courts of the state producing the act, record, or
proceeding. For example, other states must accord a marriage license issued in Hawaii the
same weight and consequence that certificate receives in Hawaii.

The U.S. Supreme Court first applied the principle of according full faith and credit to
out-of-state acts, records, and proceedings in the context of judgments. For example, to
determine what full faith and credit judgments should receive "[i]t remains only then to
inquire in every case what is the effect of a judgment in the state where it is rendered."13
But full faith and credit is not limited to judgments; over time the Court has extended the
same analysis to other acts, records, and proceedings.14 In each instance, a court in the
forum state must accord the act, record, or proceeding the same effect it has in the state
where issued.

By statute Hawaii regards a marriage certificate issued pursuant to its marriage law to be
prima facie evidence of a validly contracted marriage.15 Therefore, the courts of all other
states must also recognize the certificate as prima facie evidence of a validly contracted
marriage.16

B. "Conflicts of Law" as a Competing Analysis

States resisting recognition of same-sex couples' marriages will probably argue that the
Full Faith and Credit Clause does not require them to treat such marriages as an act,
proceeding, or record to which they must give effect, but rather allows them to invoke their
own marriage laws as applicable. That argument arises because the U.S. Supreme Court has
distinguished between the application of the Clause to out-of-state determinations of the legal
status, rights, and responsibilities of specific persons, and to choice-of-law decisions in
litigation. In my view, the argument is misplaced, as what is at issue is not whose law
should govern, but rather what respect must be accorded a res, a marital status, that the
couples now possess and embody.

In this "conflicts of law" context, the Supreme Court has recognized

that full faith and credit does not automatically compel a forum state to subordinate its
own statutory policy to a conflicting public act of another state; rather it is for this Court to
choose in each case between the competing public policies involved.
Hughes v. Fetter, 341 U.S. 609, 611 (1951). The issue in Hughes was whether Wisconsin
could under its wrongful death statute deny a cause of action to the estate of an Illinois
descendent, where Illinois law would have permitted the suit. In ruling that Wisconsin must
allow the suit, the Court balanced

the strong unifying principle embodied in the Full Faith and Credit Clause looking toward
maximum enforcement in each state of the obligations or rights created or recognized by the
statutes of sister states
against the policy of Wisconsin "against permitting Wisconsin courts to entertain this
wrongful death action." Id. The Court noted that "if the same cause of action had previously
been reduced to judgment, the Full Faith and Credit Clause would compel the courts of
Wisconsin to entertain an action to enforce it" without balancing any policy interests.
Hughes, 341 U.S. at 612 n.4.

Thus, when state acts, records, or judicial proceedings have been applied to the facts of a
particular case to determine the rights, obligations, or status of specific parties, the other
states must give those acts, records, or proceedings the same effect they would have at home.

The status has been created, the judgment rendered, the record recorded, and rights
established -- no question of what legal regime may be invoked is now at pertinent.
However, when asked to recognize an unfulfilled or general right or duty based on another
state's statute or case law (such as the cause of action that would have been available to
Hughes in Illinois), states may weigh the competing interests before deciding which rule of
law to apply.

Since a marriage -- whether as a certificate, an act, or a judgment-like res -- falls into the
category of such adjudications or creations, there can be no policy balancing regarding their
recognition. That this is the right result is reinforced by the fact that people could easily have
a "judgment" outright were Hawaii to accompany its celebration of marriages with a
mechanism whereby married couples could speedily obtain, as suggested by Hughes, a
declaratory judgment of marriage. Couples could then return home with their certificate,
their newlywed status, their snapshots, and a court order.17 Hence, "conflicts" or "choice of
law" is not the proper analysis for cases involving marriage, and the marriage laws of the
forum State cannot be used to displace an accomplished act (also recorded and "adjudged")
under Hawaii's marriage law.

C. Other Constitutional Grounds

A State's refusal to recognize a marriage validly contracted under the laws of Hawaii
would place a direct and tangible obstacle in the path of interstate migration and burden
people's now-not-merely-abstract right to marry, thus implicating other constitutional
provisions relating to due process, the right to travel and move freely throughout the nation,
equal protection, interstate commerce, and privileges and immunities,18 as well as the
fundamental right to marry itself. For example, a married couple in Hawaii who wished to
travel in or to another state would essentially have to choose between their marriage and their
right to travel.

The rights to marry and to have that marriage recognized are of fundamental importance,
both in and of themselves,19 and in part because marital status includes substantial economic
and practical protections and benefits, upon which may depend the couple's ability to live as
they want, raise children as they want, or even subsist. By refusing to recognize a couples's
marriage, a State would, for example, "unduly interfere with the right to 'migrate, resettle,
find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629 (1969);20
see also Edwards v. California, 314 U.S. 160 (1941)21; Crandall v. Nevada, 73 U.S. 35
(1867).22

Whatever cluster of constitutional grounds ultimately proves successful, it is clear that
those opposing recognition of same- sex couples' marriages are advocating a position that
could do great damage not only to the individual couples and children involved, but also to

the institution of marriage, family relationships, and the links and mobility vital to our federal
union.23 For all these reasons, the position that the Constitution mandates full faith and
credit for validly contracted marriages is right and should be developed.

II. The Common Law

Although there are a number of marriage-recognition decisions invoking the Full Faith
and Credit Clause (and none explicitly rejecting it), the vast majority of cases regarding
marriage recognition have proceeded under common law. Under that approach, marriages
that are validly contracted in one state are given, at least, a strong presumption of validity in
all other states. 52 Am.Jur.2d Marriage 3 (1970).24 We must be prepared to make
arguments under the common law, although we should not, in doing so, concede the validity
of abandoning the Full Faith and Credit Clause and its federalist imperatives.

The rule at common law has been that a marriage valid where contracted (under the "lex
loci contractus") is valid everywhere (i.e., in the "forum state" or under "lex fori").25 This
general rule of course helped obviate the tensions that flow from non- recognition of people's
marriages, and thus any need to invoke the Full Faith and Credit Clause. In addition, many
states have subscribed to the Uniform Marriage and Divorce Act, or adopted some version of
its requirement that all marriages validly contracted in one state will be valid in the forum
state.26

Under some common law approaches, this general rule contains a disfavored loophole,
what I call the "states' rights 'public policy' exception." Under this exception, although there
is a presumption for recognition, states may elect not to recognize a marriage that is valid
where contracted if recognition would contradict a strong public policy of the forum state or
(in the Second Restatement's formulation) of the state "which had the most significant
relationship to the spouses and the marriage at the time of the marriage."27 Restatement,
Second, Conflict of Law 283 (1969).28 This states' rights exception arose at least in large
part from the historical desire not to have to recognize interracial marriage.

Citing the local "public policy exception" -- and ignoring the Full Faith and Credit Clause
-- forum states have sometimes refused recognition to out-of-state or foreign marriages that
either violated the forum's own marriage laws, or would not have been capable of celebration
under those laws, regarding polygamy and bigamy, incest, miscegenation, age, prior divorce,
common law marriage, capacity, and proxy marriages. On the other hand, the force of the
general rule has often led other courts to recognize marriages that violated the forum's
provisions regarding those same subjects.29

In keeping with this mixed pattern, some states undoubtedly will recognize same-sex
couples' marriages, while others may attempt to deny recognition, invoking states' rights and
adducing a public policy out of miscellaneous anti-gay aspects of their law. There are, of
course, no legitimate public policies served by telling a couple that they are not married, or
withholding equal protection, respect, and treatment.

If they are permitted to pursue this aconstitutional approach, courts would have to
determine whether recognition of an out-of-state marriage offends a "strong public policy."
They might consider whether the marriage was expressly or impliedly prohibited by local
statute or case law,30 and possibly (if seemingly unconstitutionally) whether such marriages
are contrary to "morality," "natural law," the traditions of "Christiandom," or
"Judeo-Christian teachings."31 They might consider whether the forum state has somehow
adopted (or in a meaningful way countenanced) a strong policy of anti-gay discrimination
somehow related to same-sex couples' marriages.

However, given the strong interests in favor of ensuring that marital status enjoy uniform

recognition throughout the states -- to protect parties from charges of unlawful cohabitation
and adultery, to ensure orderly disposition of property in the event of death or divorce, to
protect the interests of children, to facilitate mobility, and generally to protect the
expectations of the parties -- states have generally recognized marriages (even if contrary to
state law or public policy), refusing to recognize validly contracted marriages only on
grounds of strong local public policy. 52 Am.Jur.2d Marriage 80, 82 (1970);
Restatement, Second, Conflict of Laws 283 cmt. b (1969).

When challenged with a claim of "public policy," advocates should respond with the
strongest countervailing policy and justice arguments available under the specific
circumstances of the case, as well as general arguments. The policy balancing may occur in
the context of the specific right, benefit, or responsibility of marriage arising in the litigation,
e.g. intestate succession rights, insurance proceeds, tax status, or maintenance. See
Restatement, Second, Conflict of Laws, 283 (1969). Under this approach, advocates may
wish to focus on the policy advantages of recognizing the marriage for purposes of the
specific incident (e.g. the orderly disposition of descendent's property in a case of intestate
succession), and critical elements related to the parties' expectations and fair reliance
interests, as well as on recognition of the status of the marriage itself. We might also argue
that the "public policy" is not sufficiently strong, as evidenced by how it is expressed (i.e., as
a civil rather than criminal statute, or only by inference from other state laws or policies
rather than expressly or on point), or that an analogous "public policy" was disregarded in an
analogous (albeit non-gay) case.

The states' rights exception to the common-law rule of presumptive recognition has not
actually been invoked in decades, has received sharp, serious, and sustained scholarly
criticism, and should, if necessary, be challenged on constitutional grounds. A product of a
shameful past of racism, national disunion, and relatively less mobility, the states' rights
exception contradicts the basic premise of federalism that the states cannot treat each other
like foreign countries.32

All marriages contracted within this State prior to the effective date of the Act, or outside
this State, that were valid at the time of the contract or subsequently validated by the laws of
the place in which they were contracted or by the domicile of the parties, are valid in this
State.
9A U.L.A., 210 (1979). The Act has a great advantage over the common law rule in that
its authors explicitly declared:

the section expressly fails to incorporate the 'strong public policy' exception of the
Restatement and thus may change the law in some jurisdictions. This section will preclude
invalidation of many marriages which would have been invalidated in the past.

Id., official comment. In interpreting the Act an Illinois court stated that:

Out-of-state marriages are recognized as valid, thereby giving full faith and credit to a
sister State's laws, if they were valid when contracted. However, the statute further extends
what marriages are valid, even if the marriages were not valid where contracted, if the
marriages were subsequently validated, either by the law of the State where contracted or by
the law of the State where the parties to the marriage were domiciled. By allowing
prohibited marriages to become validated, the purpose of the Illinois statute, i.e., to
"strengthen and preserve the integrity of marriage and safeguard family relationships" is

Given that a significant number, indeed a plurality, of states are thus bound (independent
of constitutional obligation) to respect marriages celebrated elsewhere, there are ample
federalist arguments in favor of having a clean rule based on people's clear expectations
regarding marriage and American union.
CONCLUSION

Most Americans, gay or non-gay, have not yet had to give real thought to the validity or
meaning of same-sex couples' marriages and having the equal right to marry. While the
initial reaction of many will range from incredulous to hostile, we also have much going for
us: the fairness and rightness of respecting family relationships and committed, caring unions;
the ability to present these stories in a compelling, positive, warm, and sympathetic manner
(asking people how they would resolve this Catch-22); the logic, indeed, imperative of not
requiring people to choose between marriage and movement from state to state; the sense that
marriage is marriage, and this is one country in which if you are married, you are married;
and a number of sound constitutional, statutory, common law, and fairness arguments.

Whether under the Full Faith and Credit Clause, other
constitutional provisions, or the common law presumption of recognition, we should not give
up on this fight before we have even begun to wage it. And we must begin to wage it, not
just through legal preparation, but through public education and political organizing. Above
all, we must frame the discussion so as to put forward what works for us, while casting our
enemies in their true colors -- the same crowd that, hiding behind the banner of "states'
rights," has always been hostile to others' equal rights and pursuit of happiness.

1. Senior Staff Attorney at Lambda Legal Defense and Education Fund. With appreciation, I
acknowledge the significant assistance of Gregory S. McCurdy and law students Robert
Murphy and Camille Massey in the preparation of this summary as well as underlying
materials on these topics.

3. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme
Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor
can the legislature alter the outcome (notwithstanding legislation such as that it adopted in
June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional
amendment.

4. As among non-gay Americans, there is a vast demand among lesbians and gay men for the
equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the
Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community
Critique," 21 N.Y.U. Rev. of L. & Soc. Change ___ (1995) (forthcoming). Marriage
brings with it a host of legal and social benefits and protections otherwise largely unavailable.

Id.

5. For fuller discussion of these and other issues, see the material identified in the
bibliography of equal marriage rights maintained by Lambda; see also Evan Wolfson &
Gregory v.S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly
Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming); Jennifer

7. Experts agree that judgments receive the most immediate, unquestioned full faith and
credit. See, e.g., Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The
Respective Roles of Due Process and Full Faith and Credit in the Interstate Context," 70
Iowa L. Rev. 95, 97 (1984).

10. See Robert H. Jackson, "Full Faith and Credit -- the Lawyer's Clause of the
Constitution," 45 Colum L. Rev. 1, 7 (1945) (Full Faith and Credit Clause under-invoked in
contexts such as marriage because "the slavery question and [Jim Crow laws] had begun to
distort men's view of government and of law. Talk of 'state sovereignty' became involved in
the issue.").

11. Id. at 3 (former Supreme Court justice observes that the Full Faith and Credit "[C]lause
is a relatively a neglected one in legal literature.... The practicing lawyer often neglects to
raise questions under it, and judges not infrequently decide cases to which it would apply
without mention of it."). Indeed, the whole idea of enforceable rights is itself relatively new,
as is the constitutionalization of family and marriage law, both largely arising since the
heyday of non-recognition cases.

12. Thus, even more than developing any technical legal argument, it is critical that we
collect and explain evocative real life examples of how burdensome, or indeed impossible, it
would be to have the status of one's marriage, or one's parents' marriage, vary from state to
state.

that "public acts", including plaintiff's corporate charter, must be given same effect as in
issuing state).

15. See Haw. Rev. Stat. 527-1 and 572-13 (c) (1985); see also Conn. Gen. Stat. Ann.
46b-35 (1958). For a list of states statutorily prescribing what full faith and credit their
marriage certificates should receive see Evan Wolfson and Gregory v.S. McCurdy, "'Let No
One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex
and Different-Sex Couples" (forthcoming).

16. Another set of issues may arise if states take the position that people do, on the face of it,
appear to be married, and then pass statutes giving benefits to different-sex married couples
while denying them to same-sex married couples. Challenges might arise under gender
discrimination, sexual orientation, and other equal protection theories, as well as due process
and fundamental right to marry theories. Naturally, the fall-out in these battles may also
prompt reconsideration of the use of marriage as the unique criterion it is today in many
contexts.

17. Professor Henson has also noted this point. 32 U. Louisville J. Fam. L. at 551. There
is also an argument to be made regarding the anomaly in requiring states to recognize
divorces, but not marriages.

20. In Shapiro v. Thompson, the Court grounded the right to travel in the Equal Protection
Clause and employed strict scrutiny analysis. The Court stated: "Since the classification here
touches on the fundamental right of interstate movement, its constitutionality must be judged
by the stricter standard of whether it promotes a compelling state interest." Id. at 638. At
issue in Shapiro were state and federal provisions denying welfare benefits to persons who
had not resided within the jurisdiction for at least a year. The requirement both deterred and
penalized travel. In addition, none of the government's reasons were found to be compelling.

The Court said that families could not be "denied welfare aid upon which may depend the
ability...to obtain the very means to subsist," solely because they were members of a class
which could not satisfy a one-year residency requirement. Id. at 627.

In Dunn v. Blumstein, the majority declared that "it is irrelevant whether
disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did
not rest upon a finding that denial of welfare actually deterred travel...In Shapiro we
explicitly stated that the compelling-state-interest test would be triggered by 'any classification
which serves to penalize the exercise of [the right to travel]...'" 405 U.S. 330, 339-340
(1972) (quoting Shapiro, supra, at 634). The Dunn Court overturned Tennessee's state and
local durational residency requirements for voting, and stated "whether we look to the benefit
withheld by the classification (the opportunity to vote) or the basis for the classification
(recent interstate travel) we conclude that the state must show a substantial and compelling
reason for imposing durational residence requirements." Id. at 335. Further, since the
residency requirements impinged on the fundamental rights of both voting and travel, they
faced a double-barreled assault of strict scrutiny. Likewise, a State's refusal to recognize
same-sex couples' marriages from Hawaii would also impinge upon at least two fundamental
rights: the right to marry and the right to travel.

21. Edwards involved California's attempt to slow travel into the state by prosecuting citizens
who knowingly brought into the state any indigent nonresident. The Supreme Court

unanimously upheld the constitutional right to cross state lines, but disagreed on the
constitutional provision abridged. The majority relied on the Commerce Clause as prohibiting
"attempts...of any single state to isolate itself from difficulties common to all of them...by the
single expedient of shutting its gates to the outside world." Id. at 173. The two
concurrences found the Privileges and Immunities Clause of the Fourteenth Amendment to be
the applicable constitutional text, and focused on individual rights in finding that right to free
movement between states is a right of national citizenship. Mobility, Justice Douglas argued
in his concurrence, is basic to any question of freedom of opportunity and to prevent the
indigent from seeking new horizons would "contravene every conception of national unity."
Id. at 181. This takes on even greater force when linked to marriage.

22. In Sosna v. Iowa, the Court applied rationality review in upholding a one-year durational
residency requirement for divorce. 419 U.S. 393 (1975). In distinguishing previous cases in
which durational residency requirements held invalid, Justice Rehnquist explained that the
recent traveler was not "irretrievably foreclosed from obtaining some part of what she sought;
her access to the courts was merely delayed." Id. The Court's distinction seemed to turn on
the perceived significance of the burden on the right to interstate migration. In the Court's
view a "mere" one-year's delay in securing a divorce was not a sufficient "penalty" on travel
as to merit strict scrutiny. On the other hand, in Boddie v. Connecticut, the Court held that
Connecticut could not, consistent with the obligations imposed by the Due Process Clause,
deny access to a divorce court based on ability to pay a fee. 401 U.S. at 380. A State's
refusal to recognize a same-sex couple's marriage from Hawaii, would penalize, not merely
delay, those individuals who have exercised their right to move freely throughout our country.

23. The best things our opponents have going for them are, of course, (1) people's ignorance
and hostility regarding gay issues, and (2) the fact that, as a historical matter, marriage
recognition has not largely been treated as a constitutional matter. We must address this
latter point by showing (a) the parallels to non-recognition in other circumstances, i.e., race,
and (b) the increasing constitutionalization of marriage and other rights. The fact that the
Full Faith and Credit Clause was muzzled in the past does not justify its non-invocation in the
future, if needed. Cf., e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Court
reverses precedent of over a hundred years to reestablish view of federalism less deferential
to states' rights).

26. The Uniform Marriage and Divorce Act expressly repudiates any "public policy"
exception, and thus precludes invalidation of marriages whether or not they could have been
celebrated under the law of the forum state.

27. The distinction between "forum state" and "state with most significant relationship" could
actually in theory be pivotal, if the "forum state," i.e., the state where recognition is being
demanded, is not the state that had the most contacts at the time of the marriage (and thus
does not have "standing" under the Restatement to invoke the "public policy exception"). In
any case, the Second Restatement identifies factors to be considered in evaluating the strength
of an asserted public policy, while emphasizing the strong policy in favor of recognition.

28. The First Restatement contains a much more narrowly worded version of the "state's
rights exception," requiring that a marriage be recognized unless it "not only [is] prohibited
by statute but [also] offend[s] a deep-rooted sense of morality predominant in the state." At
least fifteen states follow the First Restatement.

29. As my colleague Matt Coles suggests, this fact sets up a case for a "public policy parity"
argument: Where recognition was granted in one analogous case, it must be accorded in
another, as the "public policy" purportedly justifying denial of recognition of a same-sex
couple's marriage is no greater than that previously ignored in recognizing some other
marriage (i.e., ones that were miscegenous, "evasive," between parties closely related, etc.).
Thus, it is important to be prepared to probe the elements of the claimed "public policy,"
distinguishing, for example, between an outright prohibition on same-sex couples' marriages
and a mere tradition of applying a silent statute solely in favor of different-sex couples.

30. The First Restatement requires that there be explicit statutory prohibition.

31. Such language from the cases, of course, betrays the archaic and offensive roots of the
states' rights public policy exception.

32. See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional
Foundations of Choice of Law, 92 Colum. L. Rev. 249, 313 (1992); see also 45 Colum. L.
Rev. 1, 27 (1945) ("[i]t is hard to see how the faith and credit clause has any practical
meaning as to statutes if the Court should adhere to" the public policy exception); Gary J.
Simson, State Autonomy in Choice of Law: A Suggested Approach, 52 So. Cal. L. Rev. 61,
70 n.51 (1978) (because it prevents consistent results, public policy exception is inconsistent
with Full Faith and Credit Clause); Jennifer Gerarda Brown, Competitive Federalism and the
Legislative Incentives to Recognize Same-Sex Marriage 3/14/94 DRAFT at 52 n.157 (on file
with Lambda) (article also analyzes economic benefits to state celebrating and recognizing
same-sex couples' marriages).

34. Similarly, in determining eligibility for social security benefits the U.S. Department of
Health and Human Services recognizes as valid a marriage that would be recognized as valid
by the courts of the state in which the wage earner was domiciled. Thomas v. Sullivan, 922
F.2d 132, 136 (2d Cir, 1990), citing 42 U.S.C. 416(h)(1)(A). But see
Adams v.
Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) (court says
same-sex couple not legally married under state law, nor would INS be obligated to recognize
such marriage for purposes of immigration). Because immigration law has changed since
Adams, because it lacked the benefit of cases such as Turner and Baehr, and because it is
dicta, the assertions in Adams regarding congressional intent, the meaning of marriage, and
the government's obligations are of dubious validity.
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